Fife v. Pioneer Lumber Co.

• Decision Date: 12 January 1939
• Docket Number: 6 Div. 383.
• Citation: 237 Ala. 92,185 So. 759
• Parties: FIFE v. PIONEER LUMBER CO.
• Court: Alabama Supreme Court

185 So. 759

237 Ala. 92

FIFE v. PIONEER LUMBER CO.

6 Div. 383.

Supreme Court of Alabama

January 12, 1939

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action for wrongful taking of trees by W. B. Fife against the Pioneer Lumber Company. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

F. F Windham, of Tuscaloosa, for appellant.

Foster Rice & Foster, of Tuscaloosa, and D. D. Patton, of Carrollton, for appellee.

THOMAS Justice.

This case involves the overruling of demurrer to defendant's Plea 3 to count one, declaring for the wrongful taking of trees from lands described, and which ruling caused plaintiff to take a non suit.

Plea 3 is as follows:

"The plaintiff herein, on the 5th day of September, 1936, filed his suit against the defendant herein in the Circuit Court of Pickens County, Alabama, wherein the same questions sought to be adjudicated in this Court were sought to be adjudicated by the Circuit Court in Equity of Pickens County, Alabama, a copy of which such complaint so filed in the Circuit Court of Pickens County, Alabama, in Equity, is attached to this plea, and marked Exhibit 'A' and asked to be taken as a part of this plea; that on, towit, the 8th day of October, 1936, this defendant demurred to said bill of complaint and a copy of such demurrers so filed by this defendant is attached hereto marked Exhibit 'B' and asked to be taken as a part of this plea; that, on to-wit, the 1st day of December, 1936, there was rendered by the presiding judge of the Circuit Court in Equity of Pickens County, Alabama, a decree sustaining the demurrers as filed in above stated cause, a copy of which decree is hereto attached and marked Exhibit 'C'; that, on to-wit, the 26th day of December, 1936, the complainant therein, the plaintiff here, filed his amendment to said complaint, a copy of which said amendment so filed in the Circuit Court of Pickens County, Alabama, in Equity, is hereto attached and marked Exhibit 'D'; that on, to-wit, the 11th day of January, 1937, the defendant filed demurrers to said bill of complaint as amended, a copy of which said demurrers so filed in the Circuit Court in Equity of Pickens County, Alabama, is hereto attached and marked Exhibit 'E'; that on, to-wit, the 22nd day of January, 1937, there was filed in said cause in the Circuit Court in Equity of Pickens County, Alabama, an agreement of counsel to submit said cause on the demurrers so filed therein a copy of which said agreement is hereto attached and marked Exhibit 'F'; that on, to-wit, the 25th day of January, 1937, there was rendered by the presiding judge of the Circuit Court in Equity of Pickens County, Alabama, a decree sustaining the demurrers so filed in the above stated cause, a copy of which decree is hereto attached and marked Exhibit 'G'; that on, to-wit, the 28th day of April, 1937, there was rendered by the presiding judge of the Circuit Court in Equity of Pickens County, Alabama, an order or decree in said cause, a copy of which is hereto attached and marked Exhibit 'H'.

"The defendant avers that all issues sought to be litigated in the suit at bar were litigated or might and ought to have been litigated in said cause so filed in the Circuit Court in Equity of Pickens County, Alabama, as hereinabove outlined."

Appellant concedes that if the facts set up in Plea 3 are res adjudicata to appellant's cause, he would practically be concluded from going further with the case, hence the nonsuit with a bill of exceptions.

The statute declares that whether a plea is in bar or in abatement is to be ascertained by its subject matter and prayer and not by the form of the plea. Code, § 9472; Westchester Fire Ins. Co. v. Green, 223 Ala. 121, 126, 134 So. 881; Preston Motor Sales Co. v. Prestor Motor Corp., 207 Ala. 177, 92 So. 418; Lyles v. Clements, 49 Ala. 445, 448.

It is further established in this jurisdiction that a plea of res adjudicata is a plea in bar; and it is also declared that a judgment or decree of a court of competent jurisdiction is res adjudicata and a bar to the maintenance of a subsequent suit, when it is pleaded and ascertained that the subject matter of said suit is the same embraced, or presented under issues in the former suit that are broad enough to have comprehended all that is involved in the issues of the second suit--not what was actually litigated, but what might and ought to have been litigated in the former suit, being the test. Crowson v. Cody, 215 Ala. 150, 110 So. 46; Dawson v. Haygood, 235 Ala. 648, 649, 180 So. 705; Cobbs v. Norville et al., 227 Ala. 621, 151 So. 576; Lawrence v. United States Fidelity & Guaranty Co., 226 Ala. 161, 145 So. 577; H. G. Hill Co. v. Taylor, 234 Ala. 282, 174 So. 481, 484.

The dismissal of a bill after a demurrer sustained, and for failure to amend within a reasonable time given by the court for that purpose, performs the effect of a final decree on the merits and is the foundation for demurrer or plea of res adjudicata. Clark et al. v. Whitfield, 213 Ala. 441, 105 So. 200; De Graffenried v. Breitling, 192 Ala. 254, 68 So. 265; Code of 1923, Vol. 4, p. 916, Rule 28; Crowson v. Cody, supra; Crutchfield v. Vogel, 233 Ala. 306, 171 So. 889. See also Ex parte Dunlap, 209 Ala. 453, 96 So. 441.

In Crutchfield v. Vogel, 233 Ala. 306, 309, 171 So. 889, 891, it is declared: "There was no appeal from the decree dismissing the bill, and the order remains in full force and effect. The dismissal of the chancery suit, under rule 28 of Chancery Practice, was equivalent to a dismissal on the merits. Warrior River Coal & Land Co. v. Alabama State Land Co., 154 Ala. 135, 45 So. 53; New England Mortgage Security Co. v. Davis, 122 Ala. 555, 25 So. 42."

The Chancery Court of Pickens County had jurisdiction of the original case filed by the appellant here against the defendant in said county. Code 1923, §§ 6525, 10467 and 10471.

It is of no importance that the plaintiff set up all of his rights upon which his cause of action could have been maintained; it is sufficient that it might have been litigated in the first suit. Venable et al. v. Turner, Ala.Sup., 183 So. 644; Crowson v. Cody, supra; Cobbs v. Norville, supra.

It follows that when there are several grounds of demurrer some of which are sufficient and the judgment and decree sustaining demurrer is general, the ruling will be referred to a ground that is well taken. National Park Bank v. Louisville & N. R. Co., 199 Ala. 192, 74 So. 69; Crowson v. Cody, supra.

Judgments of courts can only be impeached for jurisdictional defects disclosed on the face of the record; a party or his privies will not be permitted to assail collaterally unless the judgment is void for want of the jurisdiction of the Court--all errors of judgment or irregularities which do not render the judgment void are not available on collateral attack. Cobbs v. Norville, supra.

When jurisdiction has attached the court has a right to decide every question duly presented and arising on the case; the hearing being at a time and place prescribed by law. Cobbs v. Norville, supra.

We have indicated the desire and purpose of courts of equity to completely determine, in a proper case and in a single proceeding, the respective rights and interests of all who may be and are properly brought within their jurisdiction and as affecting the subject matter. Lindsey v. Standard Accident Insurance Co., 230 Ala. 633, 162 So. 267.

Equity abhors a...